Terms of sale, delivery and payment
I General provisions
Our deliveries are made solely on the basis of the following conditions. Purchasing conditions of the buyer are hereby expressly contradicted. They also do not oblige us if we do not object again when the contract is concluded. At the latest upon receipt of the goods, our general terms of sale, delivery and payment are deemed accepted. These terms and conditions may only be changed to non-merchants by contractual agreement or extended to future business. For business people, these terms and conditions also apply to future follow-up business, provided that we expressly reserve the right to make changes in future business. All our offers are non-binding. Orders, price agreements and other agreements - in particular also insofar as they change these conditions of sale - become binding only upon our written confirmation.
2. Prices, terms of payment
The prices stated in our order confirmation or our price list valid at the time of conclusion of the contract apply. Insofar as the costs of material, wages, auxiliary materials or statutory charges significantly increase in the period between contract conclusion and delivery for reasons beyond our control, we are entitled to the agreed price, disclosing the original calculation and specifying the increase of the cost factors according to the scope increase the cost increase to compensate them. In the case of non-traders, we are only entitled to do so if there are more than four months between the conclusion of the contract and the delivery date. Non-merchants are in this case entitled to withdraw from the contract. Unless otherwise agreed, all payments must be made in cash without deductions within 30 days of the invoice date. Discount deduction is only permitted with explicit agreement. Self-acceptance and discountable bills of exchange are only accepted on the basis of express agreement. Credit notes for checks and bills of exchange are subject to receipt, less the applicable base rate, any bank charges and collection charges, with value date of the day on which we can dispose of the equivalent value. With regard to merchants, we are entitled to demand maturity interest of 5% if the payment date is exceeded. In case of default of the buyer we are entitled, subject to the assertion of further damage caused by default, to demand default interest in the amount of 2% above the respective basic interest rate of the German Bundesbank - however at least 6%. The proof of a lesser damage remains the buyer. In the event of a culpable breach of these conditions of sale, delivery and payment as well as inability to pay for the buyer, the claim affected by this breach will become due immediately. If, after conclusion of the contract, reasonable doubts arise about the buyer's solvency that jeopardizes our claim, we shall be entitled to execute deliveries that are outstanding only against payment in advance or as security. After setting a reasonable grace period with a threat of refusal, we are entitled to withdraw from the contract after fruitless expiration of the deadline or to claim damages for non-performance. The buyer may only offset with undisputed or legally established claims. Merchants are only entitled to assert a right of retention with respect to such counterclaims based on the same contractual relationship. We are entitled to offset our claims against the buyer - for whatever legal reason.
3. Retention of title
All delivered goods remain our property until the fulfillment of all claims due to us from the business relationship - regardless of the legal grounds. This also applies to goods on the delivery of which the buyer has expressly received his payment. In the case of a current account, the retention of title shall be deemed a security of our balance claim. The buyer may only sell the reserved goods in the ordinary course of business under his normal business conditions and only as long as he is not in default. For the resale of reserved goods, he is only entitled to the condition that the claim from the resale passes to us. He is not entitled to dispose of the reserved goods, in particular pledges or assignments by way of security. The purchaser hereby assigns to us the purchaser from the resale of the reserved goods (possibly processed or processed) or from any other claims relating to the conditional goods in the amount of the value of the reserved goods. They serve as security for the same extent as the reserved goods. Insofar as the value of the securities existing for us exceeds our claim by more than 20%, we are obliged to release the securities of our choice at the request of the buyer. The buyer is in no case authorized to assign the claims to third parties. At our request, he is obliged to inform his customers of the assignment to us and to provide us with the information and documents necessary for collection. The processing of the delivered goods is carried out for us without any obligations for us. If the reserved goods are processed, combined or mixed with other objects not belonging to us by the purchaser, we shall be entitled to co-ownership of the new object as reserved property in proportion of the invoice value of the processed reserved goods to the invoice value of the other processed goods. The prospectus of the buyer on the delivered item continues to the case. If the retention of title lapses for any reason, the resulting claim will replace it. In the event of default of payment by the purchaser or in circumstances occurring after the conclusion of the contract which jeopardize the satisfaction of our claim, we are entitled to withdraw from the contract. In this case, at our request, the goods are to be returned to us with immediate delivery of an inventory. The reclaim of the goods by us is considered a withdrawal from the contract. Under these conditions, we are entitled to sell the goods at our discretion by auction or freehand and to offset the proceeds on the purchase price. In the case of seizure or seizure of the reserved goods or claims assigned to us by third parties, the buyer must point out our reservation of title or assignment and inform us immediately, handing over the documents necessary for an intervention. Insofar as the intervention was successful and its costs can not be recovered from the third party, this is borne by the buyer. The rights under § 46 KO exist in addition to the existing rights. The buyer renounces the rights from § 50 of the comparison regulations.
We are liable
a) in commercial transactions and in relation to legal persons under public law or to a special fund under public law without limitation for intent. We are also liable for gross negligence and for any culpable violation of essential contractual obligations. The liability is limited to the contractually typical, foreseeable damage; the limitation does not apply in the event of gross negligence on the part of our legal representatives or officers,
b) in non-commercial traffic for intent and gross negligence as well as any culpable violation of essential contractual obligations. In the case of a breach of essential contractual duties, the liability is limited to the contractually typical, foreseeable damage, unless the breach is intentional or grossly negligent.
5. Place of performance and jurisdiction
Place of fulfillment for all rights and obligations of both parties - with the exception of the buyer's obligation to pay - and place of jurisdiction for contracts with merchants, legal persons under public law or special funds under public law is Krefeld. However, we are free to call the court at the buyer's place of general jurisdiction.
6. German right, partial inefficiency
The law of the Federal Republic of Germany. UN-Kaufrecht (CISG) is excluded. The ineffectiveness of individual provisions of these conditions does not affect the effectiveness of the remaining regulations. The contracting parties undertake to bring about a provision which would be more akin to the intended result than the ineffective obligations and which the parties would have agreed if they had known the ineffectiveness of this provision.
II Execution of the delivery
1. Delivery time
The specified delivery dates are ex works. They are only approximate and, without prejudice to our rights of default by the purchaser, shall be deferred by the period during which the purchaser is in default of its obligations under this or any other financial statements. If a delivery date is binding, then it is deemed to have been met if and to the extent that we have shipped the goods in good time. If the dispatch is not possible without our fault or that of the supplier, or if the required shipping instructions, the agreed acceptance or the opening of a letter of credit have not been received on time, the delivery period shall be deemed to have been met with the timely notification of readiness for shipment. Should we fall into arrears, the purchaser must set us a reasonable period of grace. After expiry of this period, the purchaser can withdraw from the contract to the extent that the service is due and the goods have not been reported as ready for shipment by the deadline in the raw or finished state. Claims for damages due to non-fulfillment due to slight negligence, insofar as these do not fulfill contractual obligations, are excluded.
2. Force majeure
After the conclusion of the contract, events of force majeure entitle us to postpone the delivery for the duration of the hindrance - but at the latest for 4 months - plus a reasonable start-up time. From a duration of disability of more than 4 months, we are entitled to withdraw from the contract. Any intermediate services must be returned by us. Force majeure shall be equated with circumstances which make delivery considerably more difficult or impossible for us, such as: B, strike or legal lock-out, fire, machine breakdowns or breakdowns not attributable to us in the interests of taking over, precautionary or faulty negligence in our and in the operation of a supplier as well as unpredictable lack of raw materials or fuels. Our right of withdrawal under sentence 1 does not apply to delays in delivery due to industrial disputes. The buyer may demand from us, setting a reasonable deadline, the declaration as to whether we wish to withdraw or deliver within a reasonable period of time. If we do not declare in time, the buyer can withdraw from the contract.
3. Partial delivery, end-of-day closing, overdraft
We are entitled to partial benefits to a reasonable extent. For deals with ongoing delivery, we are required to give timely calls and specifications for approximately equal monthly quantities, otherwise we are entitled after unsuccessful grace period to self-classify and specify and deliver the goods or because of not timely released or specified part of the entire backward part resignation and claim damages. If the contract volume is exceeded by the individual calls of the buyer, we are entitled to the delivery of the surplus, but not obligated. If we do not make a separate agreement, we will invoice the goods delivered beyond the final quantity at the current price or the final price valid at the time of the last delivery.
If special quality specifications have been agreed, or if the goods are shipped abroad, the buyer is obliged to inspect and accept the goods on the supplier after notification of readiness for shipment within 5 working days. The personnel acceptance costs are borne by the buyer, the material acceptance costs are borne by us. If the buyer does not accept the goods after notification of the readiness for shipment, not in time or not completely, we are entitled to store the goods and to charge the resulting own or third party storage costs or the goods after setting a reasonable grace period at the expense of the buyer to send this. The goods are then deemed to be accepted upon dispatch or storage.
As far as the dispatch on reel must take place, these are billed and are to be paid. Reels are not packaging in the sense of the AWG. A redemption can be made without prior agreement without credit. The packaging is weighed. The calculation of the delivery in rings, without reel, is gross for net, if sold by weight.
6. Shipping and transfer of risk
Otherwise, we are entitled to store it at the buyer's expense at our discretion, and to invoice it immediately after notification of readiness for shipment as delivered ex works. If truck pickup is planned and the material is not picked up within 5 days after our notification of readiness for dispatch, which corresponds to the agreed delivery date, we are entitled to ship the goods ourselves at our own discretion.
The statutory provisions on the default of acceptance remain unaffected. With the transfer to the forwarding agent, carrier or carrier, the risk - including seizure in any case - even in fob or cif transactions - passes to the buyer. Shipping, transport and protection are reserved to our choice. Protective equipment, covered and special cars are specially calculated here.
7. Defects, delivery of non-contractual goods
If the purchase is a commercial transaction for both parties, the buyer must report externally identifiable errors within 8 days of receipt of the goods in writing or by fax. Unless otherwise agreed, warranty claims that the buyer in this case against us on occasion or in connection with the delivery of the goods, one year after delivery of the goods. For non-merchants in case of obvious defects, a notification period of 14 days from receipt of goods applies. Defects which can not be identified within this period are to be reported after discovery with immediate cessation of any working or processing in the aforementioned form (the statutory warranty obligation applies).
In the case of legitimate complaints, we shall be obliged to rectify or take back the defective goods for subsequent delivery of faultless goods or we or our vicarious agents will be charged with intent or gross negligence. In the case of delayed or omitted subsequent delivery or in the event of failure of the rectification as well as in case of defects in the subsequently delivered goods, the buyer is entitled to demand a reduction of the remuneration (reduction) or cancellation of the contract (conversion). Further claims for damages are excluded, except in the cases of sentence 1 of the previous paragraph, as well as in case of fraudulent intent and the purpose of the contract materially breach of contract by us.
Defects of a part of the delivery entitle only to the complaint of the entire delivery, if a separation of defective and defect-free goods is not possible in a reasonable way. Warranty claims can not be asserted if the buyer does not give us opportunity to convince us of the justification of the complaint. Claims under the Product Liability Act remain unaffected. The above provisions also apply to the delivery of goods other than those conforming to the contract.
Properly delivered products will only be taken back by us in exceptional cases and within the scope of the possibilities, if they are in perfect condition and not from a contract manufacturing. At cost we charge 25% of the value of the goods, but at least € 30, - net.
9. Dimensions, weights, quality
Deviations in dimensions, weight and quality are permitted in accordance with DIN EN regulations or the applicable practice. The weights are determined by the weighing masters on our calibrated and controlled scales and are decisive for the calculation. When delivered in wagonloads, the total weight is decisive for the calculation. Differences compared to the calculated individual weights are to be proportionately distributed among them. Weight verification is done by presenting the weighing protocol.
III: Additional conditions for export transactions
1. Unless these terms of sale or special agreements specify otherwise, the international commercial terms specified in the incoterms shall apply to our sales obligations in the form valid on the day of the order confirmation.
2. The prices specified in our order confirmation apply.
Our prices set normal, unobstructed transport conditions, for transport by water z. B. unobstructed shipping ahead. Additional costs incurred due to incomplete loading or obstruction of transport conditions are borne by the buyer.
Customs, consular costs, freight, insurance premiums and other ancillary costs are, if they are included in the agreed price and increase after conclusion of the contract or if they arise new, borne by the buyer. The same applies to the additional costs that result from the fact that the shipment was required on a different route than the intended route. Unless otherwise agreed, the payment is due immediately upon receipt of the invoice without deduction.
3. In the event of damage in transit, the purchaser must immediately initiate an assessment of the facts with the responsible authorities, otherwise claims against the carriers and insurers will be canceled. These terms and conditions apply to fob sales and analogously to other sales, in particular for franco-ship or cif-port.
Essen, February 2015
Terms and Conditions of LS + S Lifting Supply + Service GmbH